The ANA Messenger - Spring Edition
Implementing Mashpee Wampanoag Tribal Court Infrastructure
The Mashpee Wampanoag Tribal Court in Mashpee Massachusetts is a new court, established in 2006 with the formation of the Elders Judiciary Committee (EJC). At that time the Judicial Ordinance was being developed which would provide some structure to the Court layout, which consisted of a Supreme Court, District Court, and Peacemaker Court. The EJC was considered judges and did hear one case. The EJC developed a two page Rules of Civil Procedure which were very rudimentary. When cases became more complicated and lawyers were brought in, it was decided to add a contract judge.
The Judicial Branch of government could not operate as separate but equal to the Legislative Branch until three Supreme Court Judges were hired. In 2009 those Judges were interviewed and recommended by the EJC. With the arrival of Supreme Court Judges, the Chief Judge adopted the Federal Rules of Civil Procedure. It was soon discovered the Federal Rules put Tribal members at a disadvantage, especially those who wanted to represent themselves because they could not afford a lawyer. The Federal Rules were too complicated to understand and allowed cases to drag on.
The EJC, who were given the task of developing the Court, decided the Court needed its own Rules of Civil Procedure, specific to Mashpee Wampanoag and reflective of our own tradition and culture. We also noted when the Rules were developed, they needed to be easily understood by our members. Rules had to be assessable to our community along with events happening in Tribal Court. The EJC surveyed the Tribal members to find out what they wanted in their Tribal Court. The clear answer was speedy justice with cultural and traditional elements prevalent. The EJC, in collaboration with the Development Department, wrote a proposal for a two year ANA SEDS TG grant to help develop Mashpee specific Rules of Civil Procedure, Policy and Procedure for Tribal Court, a website, Peacemaker Code of Ethics and a Pro Se Litigant Guidebook.
Since the EJC had managed a Tribal Courts Assistance Program (TCAP) grant, which helped lay the Tribal Court foundation, it was decided the EJC was in the best position to oversee the grant and participate in the activities the grant generated. Vivian Bussiere, Chair of the EJC; Barbara Harris, Vice-Chair of the EJC; and Marita Scott, Court Clerk were identified as key project staff members during the first year of the project. Tribal Court had put out feelers for law schools to help with such a lofty project prior to being awarded the grant. We were fortunate Suffolk University Law School partnered with the Tribal Court to help develop the infrastructure needed to service our community.
As we progressed through the project, other Rules were identified as needed, Rules of Evidence and Appellate Rules of Civil Procedure. We also needed laws. Transitioning from the end of the first year to the second year brought all kinds of challenges we did not foresee. The Court Clerk resigned from the second year of the project. Tribal Court was displaced several times and actually closed while cases were continued.
Our goal was to increase tribal members’ participation in Tribal Court. The first year of the grant exceeded our goal of a 25 percent increase in cases. We are currently working on the Pro Se Guidebook to be distributed at the end of the project. This will provide a visual of the court processes, making it easier for our members to negotiate Tribal Court. The Mashpee Wampanoag Rules of Civil Procedure are in simple language with as little legal language as we could get away with. Simple language is also contained in the Rules of Evidence and the Appellate Rules of Civil Procedure. We will have a Full Faith and Credit Law allowing collaboration between jurisdictions. We will have a Child and Family Law to provide guidance for our ICWA cases.
Once all the Rules are adopted they become part of our Tribal Court forever. It will be the same for the Pro Se Guidebook, Peacemaker Code of Ethics, and the Employee Handbook which is considered part of our policy and procedure for court staff. Our web site is up and running www.mwtribejudicial.com and continues to be a work in progress.This was a big project and very ambitious. With the help of our partners, Suffolk University Law School, the Chief Judge, Supreme Court Judge, Judicial Advisory Board, the Elders Judiciary Committee, Tilden & McCoy LLD we have been successful. The EJC discovered, for a project of this scope to be successful, you needed a dedicated team, willing to do the work needed in the time accorded to it.